U.S. Solicitor General Noel Francisco and his team made good Thursday on the Department of Justice’s pledge to make a very rare petition directly to the Supreme Court of the United States to reinstate President Donald Trump’s decision to end Deferred Action on Childhood Arrivals (DACA).
In a 175 page petition, the administration is asking the nation’s highest court to overturn Judge William Alsup, a liberal Californian federal judge, in his bid to force the U.S. Department of Homeland Security (DHS) to continue Barack Obama’s executive amnesty and keep granting work permits to hundreds of thousands of illegal aliens. It argues:
The district court’s unprecedented order requires the government to sanction indefinitely an on-going violation of federal law being committed by nearly 700,000 aliens—and, indeed, to confer on them affirmative benefits (including work authorization)— pursuant to the DACA policy. That policy is materially indistinguishable from the DAPA and expanded DACA policies that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this Court voted to affirm. Without this Court’s immediate intervention, the court’s injunction will persist at least for months while an appeal is resolved and, if the court of appeals does not reverse the injunction, it could continue for more than a year given the Court’s calendar. (emphasis in original)
As Attorney General Jeff Sessions announced Tuesday, the U.S. Department of Justice (DOJ) is also pursuing a more typical appeal in the U.S. Court of Appeals for the Ninth Circuit, but is taking the exceptional measure of asking the Supreme Court to weigh in before the full appeals process plays out in the Ninth Circuit because Sessions’ DOJ believes, as specified in Supreme Court Rule 11, “the case is of such imperative public importance as to justify deviation from normal appellate practice.”
Alsup issued an injunction two weeks ago blocking the end of DACA while a lawsuit brought by pro-illegal alien activists — including the woman who first implemented the executive amnesty, Obama’s DHS Secretary Janet Napolitano — is pending. The lawsuit alleges, in essence, that undoing the Obama administration’s DACA order in the same manner it was issued violates the Administrative Procedure Act.
Before he issued his injunction, the Bill Clinton-appointed Alsup tried to get the administration to disclose a massive tome of material around the decision to end DACA, hoping to find reasoning he considered unacceptable for the move, like racial animus. He was quickly reversed by a unanimous Supreme Court after his own appellate court, the notoriously liberal Ninth Circuit, upheld his discovery orders.
“DHS retains discretion to revoke deferred action unilaterally, and the alien remains removable at any time,” Francisco’s petition argues, noting that Texas’s own suit to have DACA declared unconstitutional, like the essentially identical Deferred Action for the Parents of Americans (DAPA) policy was, was only dropped because the administration chose to voluntarily drop DACA.
If the Supreme Court decides to take up the government’s petition, it will have the opportunity to quickly block Alsup’s injunction, allowing DHS to follow the Trump administration’s chosen policy and stop issuing DACA-status for the estimated 800,000 young illegal aliens who would begin to lose that status in March.
The case is Regents of the Univ. of Calif. v. U.S. Dept. of Homeland Security, No. 3:17-cv-5211 on appeal from the U.S. District Court for the Northern District of California.
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